Legal empowerment for local resource control

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diverse local contexts; but may also entail accepting inequitable relations
within the community. This is particularly so given that, as already mentioned,
the size of a community in Mozambique can reach over 10,000 people and
tens of thousands of hectares. Securing the resource rights of such a large
entity may have little impact on the security of the rights enjoyed by
individuals and households within their entity (Kanji et al, 2005).
Other legal systems regulate intra-community relations to a greater extent.
The archetype in this regard is South Africa’s Communal Property
Association Act 1996. This provides for the creation of a corporate structure
endowed with a written constitution and with legal capacity, and regulates
intra-community affairs – e.g. requiring the constitution to provide for
democratic decision-making, non-discrimination in relation to membership,
accountability and transparency (Fitzpatrick, 2005).
As for the focus countries, Ghanaian legislation emphasises the fiduciary
obligation of chiefs and family heads to perform their functions for the
benefit of their community or family (article 36(8) of the Constitution) –
although in practice customary chieftaincies enjoy considerable latitude in
the exercise of their natural resource responsibilities. 43 In Cameroon, local
resource users must establish associations, cooperatives or other legal
entities in order to exercise their resource rights under the “community
forestry” scheme. This means that they must comply with legal
requirements concerning the internal functioning of those entities – which
includes democratic decision-making and non-discrimination.
Evidence suggests that these requirements may have little impact on the
ground, however. In Ghana, many chiefs have engaged in appropriating
lands for personal use, and in renting or even selling it to outsiders for
personal gain (e.g., on the Tamale area, see Abudulai, 2002). Ghanaian law
does require consent of the principal elders in the community for such
transactions (Allotey v. Abrahams); but lack of consent makes transactions
voidable rather than automatically void, and time-consuming processes are
required in order to void them (Ayine, pers. comm.). This shows how vesting
resource rights with customary chiefs may leave group members exposed to
abuse by the chiefs, and make them vulnerable to losing the resources on
which they depend.
43. On intra-community relations under customary law in Ghana, see Ubink (2007).